Jones v. Pennsylvania R. Co.

• Decision Date: 05 October 1891
• Docket Number: 111
• Citation: 22 A. 883,143 Pa. 374
• Parties: WILLIAM JONES v. PENNSYLVANIA R. CO
• Court: Pennsylvania Supreme Court

22 A. 883

143 Pa. 374

WILLIAM JONES v. PENNSYLVANIA R. CO

No. 111

Supreme Court of Pennsylvania

October 5, 1891

Argued March 26, 1891

APPEAL BY DEFENDANT'S EXRS. FROM THE COURT OF COMMON PLEAS NO. 2 OF PHILADELPHIA COUNTY.

No. 111 January Term 1891, Sup. Ct.; court below, No. 445 June Term 1882, C.P. No. 2.

On June 21, 1882, William Jones brought trespass on the case against the Pennsylvania Railroad Company, to recover damages for consequential injuries to plaintiff's real estate, caused by the building of the elevated Filbert street extension of defendant company's railroad. A declaration was filed July 19, 1884. On September 16, 1884, the defendant pleaded not guilty, and on October 12, 1886, filed an additional plea setting up specially an alleged submission and award, and a tender of the amount of the award. Issue.

At the trial, on February 10, 1890, the plaintiff having shown the construction, etc., of the Filbert street extension of the defendant's railroad, the pillars thereof being upon the sidewalk and the top of the road not more than four feet from the plaintiff's buildings, and the injuries caused thereby, rested, when the defendant put in evidence under its special plea the following submission, executed on November 7, 1883, by the plaintiff and by Mr. Fox and Mr. Mac Veagh representing the defendant company:

"Now these presents witness that the undersigned hereby agree that the question as to the fair market value of each of said properties, No. 2129 Filbert street, and northeast corner of Twenty-second and Filbert streets, immediately before the Filbert street branch was known to be contemplated, say July 1, 1881, shall be submitted to the final decision of Henry R Gummey and Craig D. Ritchie, Esqs., if they can agree upon the same; if not, they shall have power to select an umpire whose decision shall be final; it being agreed that the premises, northeast corner Twenty-second and Filbert streets have been occupied for many years past as a blacksmith and wheelwright-shop by said William Jones, and that that fact shall be taken into consideration by the arbitrators, but no valuation shall be made of the good-will of the business, but a reasonable time (say three months) without rent and after that, if necessary, six months, under such rent as may be fixed by the arbitrators, shall be allowed said Jones to remove.

"The Pennsylvania Railroad Company agreeing to pay in cash the price so ascertained, with interest at three per cent., from said time at which the said properties are so valued, and the owner agreeing to give to said company a good fee-simple title to said premises clear of encumbrances. And it is expressly understood that the price, when paid for the property in pursuance of this agreement, shall operate as a release to all claims of every character that the owner could make from the time of the location of the Filbert street branch to the date of said purchase."

The defendant put in evidence, also, the following award made by the arbitrators named in the agreement, to whom had been referred, in like manner, the valuation of properties of other owners upon the same square:

"The undersigned arbitrators, to whom was referred the question of the values of certain properties situate on Twenty-first, Filbert, and Twenty-second streets, proposed to be purchased by the Pennsylvania Railroad Company, and specifically delineated on a plan thereof hereto annexed, hereby report the following award:

* * *

"William Jones, No. 2129 Filbert street,

$ 5,000

"William Jones, northeast corner Filbert and

Twenty-second street

11,200

"The above sums being awarded to the owners respectively of the premises severally above mentioned as the full consideration therefor, and on payment thereof to the said several owners respectively, together with interest on the said several sums, at the rate of three per centum per annum from the first day of January, A.D. 1881, they, the said several owners, shall, by proper deeds of conveyance, grant, assure, and convey the said premises respectively to the said Pennsylvania Railroad Company, or to such person or persons as it may designate, in absolute fee-simple, clear of all ground-rents and all encumbrances whatsoever. Titles to said premises to be made satisfactory to the counsel of the said railroad company, and rent and taxes to be adjusted to dates of the respective settlements. And the said owners shall, at the same time, execute and deliver to the said railroad company a full and absolute release and discharge of all claims for any loss or damage by reason of the construction and use of the elevated railroad on the said Filbert street.

"By the terms of submissal, the said William Jones has the right to the occupancy of the premises now owned by him for the space of three months after conveyance thereof by him as aforesaid clear of rent, and the right further to continue to occupy the same for the further term of six months at such rent as the arbitrators may determine. The undersigned decide that during the free occupancy of the premises, the said Jones shall pay the taxes and water rents thereon, and that if further occupied, the rent of No. 2129 Filbert street shall be twenty-five dollars per month, and the rent of premises at the corner of Twenty-second and Filbert streets at the rate of seven hundred dollars per annum.

"The expenses of this arbitration shall be paid, one half by the owners of the premises valued, and one half by the Pennsylvania Railroad Company.

"Witness our hands and seals the twenty-sixth day of November, 1883."

It was made to appear, also, that Mr. Frank Wolfe, acting as attorney for the several property owners named in the award, caused amicable actions against the defendant company to be entered on behalf of said property owners, the action in favor of William Jones being entered on November 13, 1883, to No. 723 September Term 1883, in the Court of Common Pleas No. 3 of Philadelphia county; that he filed in said actions the agreements of submission and awards and caused judgments to be entered upon the awards in favor of the respective plaintiffs, and that afterward some of those judgments, including the one in favor of William Jones, were stricken off by the court. Testimony for the defendant tended to show that defendant's counsel objected to those judgments as irregular, asked plaintiff's counsel to have them stricken off, and that the motion upon which the judgment in favor of Jones was stricken off was made by his attorney, Mr. Longstreth. It was made to appear, further, that the arbitrators who made the awards were not sworn, and that they did not hear witnesses and did not give the parties notice of any meeting, but made the awards upon personal inspection and investigation.

The defendant showed, also, that on December 26, 1883, the board of directors of the defendant company by formal resolution approved the several awards made by the arbitrators, and directed payment of their amount, with interest at three per cent from January 1, 1881, to time of settlement, upon delivery of deeds for the properties, in fee-simple, clear of encumbrances, to said company or such person as it might designate, with releases of damages as set forth in the report of arbitrators, provided that the conveyances and papers should be approved by the general solicitor of the company; that on December 31, 1884, Mr. Henry K. Fox, on behalf of the defendant, visited the plaintiff's premises, taking with him the amount of money payable to the plaintiff, Jones, upon the award in his favor, and read to the plaintiff a written tender, signed by Mr. Fox for the defendant company, in accordance with said award; and that upon the reading of the said tender, the plaintiff refused to accept it, and ordered Mr. Fox to leave his premises.

In rebuttal, the plaintiff testified that he never knowingly submitted the matter to arbitrators; that he signed a paper in the office of Mr. Wolfe, in blank, which he supposed Mr. Wolfe afterwards filled up; that as soon as the witness heard that an award was made, he objected to it because he thought he was not getting enough, and went to Mr. Wolfe and told him that he could not stand any such arbitration as that; and that within a few days after the date of the award, having been informed that his title papers were in the hands of Mr. Fox, the witness demanded his deeds and informed Mr. Fox that he could not stand such an arbitration. Mr. Fox testified in rebuttal for the defendant that, according to his recollection, he did not have the plaintiff's title papers until some time early in 1884, and therefore, such a conversation as that testified to by the plaintiff could not have occurred at the time the plaintiff named. It was admitted that the plaintiff's wife, immediately upon the appraisement being made known to her, declined to sign the deed to the defendant, and told the plaintiff that she would not release her dower in the property and would not join in the deed, and that she had not changed her mind.

The testimony being closed, the court, HARE, P.J., charged the jury in part as follows:

The defendant requests the court to charge:

1. The uncontradicted evidence being that the plaintiff agreed with the defendant in writing to sell to it the properties in suit at values or prices to be determined by arbitrators, and that the arbitrators duly fixed the said values or prices by an award in writing, and awarded the said sums to the plaintiff and that the defendant, by formal action of its board of directors, accepted and approved said award, and by its duly constituted agent tendered to the plaintiff, the said sums fixed, and also tendered to the plaintiff, for execution, a deed and release to be signed by...